CA NORML NewsCA NORML News
WASHINGTON, Jul 28, 2004. In a landmark case, the Supreme Court has agreed to review a path-breaking decision by the Ninth Circuit Court of Appeals that protects Prop. 215 patients from federal prosecution.
The Court's hearing has been scheduled for Nov. 29th, with a decision expected by spring.
The decision, Raich and Monson et al. v. Ashcroft, holds that the federal Controlled Substances Act is unconstitutional as applied to personal possession or cultivation of medical marijuana by patients and their caregivers, since their activities do not constitute interstate commerce (Court documents in Raich-Monson case).
Pursuant to the decision, U.S. District Court Judge Martin Jenkins issued a preliminary injunction prohibiting the government from arresting, prosecuting or raiding Angel Raich or Diane Monson, the two Prop. 215 patients who brought the suit . The injunction also protects two unnamed caregivers who grow marijuana for Raich.
In a parallel suit, District Court Judge Jeremy Fogel issued a preliminary injunction protecting the Wo/Menıs Alliance of Medical Marijuana in Santa Cruz, a collective of 200 seriously ill patients whose garden was raided by the DEA in September, 2002. WAMMıs garden is the first medical cannabis farm to be legally authorized in the U.S. since passage of the Marihuana Tax Act in 1937.
"This is an incredible victory for us," said WAMM director Valerie Corral, "though we do recognize that all victories are temporary."
The U.S. Solicitor General appealed the Raich-Monson decision to the Supreme Court, arguing that it "seriously undermines Congressıs comprehensive scheme for the regulation of dangerous drugs."
Medical marijuana advocates were not surprised by the Courtıs decision to grant certiorari. "This provides an opening for patients throughout the country to use their medicine free from interference from the federal government,ı said Robert Raich, attorney and husband of Angel Raich.
The Raich-Monson case protects only personal use cultivation and possession, not commercial distribution. In a separate case, the Oakland Cannabis Buyersı Cooperative and two other clubs are appealing a federal injunction to prohibit them from selling to members. Rather than render a decision at this point, the Ninth Circuit remanded their appeal for reconsideration by the District Court in light of Raich. The OCBC was on the losing side of the first Supreme Court battle over medical marijuana in 2001, when the court ruled that distribution was not protected by a "medical necessity" defense.
The Raich-Monson case hinges on a different issue, namely whether the government has authority under the interstate commerce clause of the Constitution to regulate intrastate, personal use and cultivation of medical marijuana. The government is claiming expansive powers to prohibit marijuana under a New Deal court precedent, Wickard v. Filburn, which held that the U.S. Department of Agriculture could prohibit a wheat farmer from growing wheat for his own use, insofar as all wheat was essentially indistinguishable and belonged to a class that could potentially affect interstate commerce. In the Raich decision, a Ninth Circuit Panel ruled 2-1 that personal medical marijuana use was essentially distinguishable from the broader class of marijuana, and therefore lay outside the governmentıs scope of jurisdiction. The Raich decision relies heavily on recent rulings by the Supreme Courtıs conservative majority, in particular the Lopez and Morrison decisions, which limit Congressı power to treat non-commercial, local activity as interstate commerce.
Raichıs and Monsonıs attorneys are hopeful that they can win with support of the courtıs influential conservative wing, notably Justices Scalia and Thomas, who have led the fight to restrict federal interstate commerce powers.
However, many beltway insiders are skeptical that the courtıs aging justices are ready to strike down the "drug exception" to the Constitution.
In its last term, the Supreme Court overturned 77% of all lower court decisions it reviewed.
The Supreme Court is expected to hear the case next winter, with a decision before it recesses in June 2005.
In the meantime, the Raich ruling remains law in the Ninth Circuit, which includes all of the West Coast states where medical marijuana is legal. The decision has already benefited several of the forty-odd federal medical marijuana defendants.
In Los Angeles, patients Anna and Gary Barrett, facing charges for cultivation, became the first defendants granted the right to raise a medical marijuana defense in a federal criminal trial, thanks to a ruling by U.S. District Court Judge Nora Mannella.
The Ninth Circuit ordered a new trial for Chico medical cannabis defendant Bryan Epis, who was released from federal prison after having served two years of a 10-year sentence for supposedly conspiring to grow over 1,000 plants. In addition to the Raich ruling, Epis raised several other issues in his appeal, among them that his sentence had been enhanced without a jury hearing, in violation of the Supreme Courtıs recent Blakely decision.
Sonoma patient Keith Alden, who had been serving a 44-month sentence for cultivating for a patientsı co-op, was released on bail pending appeal under Raich. Magistrate Ed Chen excused Alden from drug testing, making him the first federal defendant allowed to smoke medical marijuana.
No such relief has been granted to San Diego defendant Steve McWilliams, who is out on bail pending appeal of a six-month sentence for a small sideyard medical garden. McWilliams and his partner Barbara Mackenzie, who suffer severe chronic pain, have been unable to use cannabis for over a year while awaiting the courtıs decision.
Others now in prison for federal medical marijuana offenses include: Michael Teague, Roy Sharpnack, Kevin Gage and Thomas Kikuchi.
Despite the Raich decision, state law enforcement officials are continuing to press federal charges against certain defendants in order to circumvent Californiaıs medical marijuana law.
In Oakland, five persons were arrested on federal charges following a CHP raid on a warehouse where 4000 plants were discovered. Medical cannabis activists maintain that the plants were for a licensed dispensary, though police reported no documentation of medical use on site.
Two defendants pled not guilty to manufacturing charges bearing a 10-year to life sentence: Jacek Mroz, 27, of San Leandro, and Jesse Nieblas, 31, of Alameda. Also arrested were Mario Pacetti, 33, of Alameda, Heleno Araujo, 32, of Concord, and Celeste Angello, 28, of Santa Clara.
Police provided conflicting accounts of the incident, first saying that it stemmed from a routine traffic stop, then from an extended investigation of the warehouse.
The CHP said it called for the DEA after Oakland police declined to help. Prop. 215 supporters denounced the CHP for circumventing California law. "The CHP is out of control," declared California NORML coordinator Dale Gieringer at a protest at CHP headquarters in Oakland, where patients planted small pot plants around the grounds.